IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev No. 64 of 2007()
1. K.KRISHNA KUMAR,
... Petitioner
Vs
1. M/S.VRINDAVAN HOTEL (P) LTD.,
... Respondent
For Petitioner :SRI.VARGHESE C.KURIAKOSE
For Respondent :SRI.P.K.RAVISANKAR
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :04/04/2007
O R D E R
P.R.RAMAN & ANTONY DOMINIC, JJ.
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R.C.R. NO.64 OF 2007
======================
Dated this the 4th day of April, 2007
O R D E R
Antony Dominic, J.
The tenant in RCP No.59/2003 on the file of the IIIrd
Additional Munsiff and Rent Control Court, Ernakulam, whose
eviction under Section 11 (4)(v) of the Kerala Buildings (Lease
and Rent Control) Act 1965 (hereinafter referred to as `the Act’
for short) was affirmed by the Rent Control Appellate Authority
by its judgment in RCA No.103/2004, is the Revision Petitioner.
2. According to the respondent/landlord, petition schedule
premises belong to the respondent company and was let out to
the tenant for business purposes in the year 1985 for a monthly
rent of Rs.1,000/-. On the expiry of the initially agreed period of
5 years, the rent was enhanced to Rs.1,500/- and the tenant still
continues to retain possession of the premises. It was alleged
that the tenant conducted various businesses in the building,
the last of which was a medical shop in the name and style
`Vinayaka Medicals’ and that since 1997, he has not been
conducting any business and the premises is remaining closed
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since then. According to the landlord, the above facts
constituted a case of cessation of occupation of the building, as
provided for in Section 11(4)(v) of the Act, rendering the tenant
liable to be evicted in terms of the said provision.
3. The tenant contended that he was still occupying the
premises. According to him, he was initially conducting a
business in readymade garments, thereafter ayurvedic
medicines and still later a pharmacy store in the name and style
of `Vinayaka Medicals’. It was stated that the landlord had filed
RCP No.80/96 seeking his eviction under Section 11(3) of the
Act, which was dismissed by all Courts. He had alleged that in
order to make it impossible for him to continue business in the
premises, the landlord has been interfering in his occupation of
the building in various ways. Power Supply to the premises was
disconnected in 1997, which compelled him to move the
Accommodation Controller by filing ACP No.3/2000 for getting
the said amenity restored. He stated that the matter had to be
fought upto this Court and finally electric supply was restored
only in 2001. Due to want of power he had to wind up his
pharmaceutical business and when efforts were made to make
the premises suitable for alternate business, the landlord
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prevented him by obtaining an order of injunction in O.S.
No.1737 of 2000 filed in the Additional Munsiff’s Court,
Ernakulam. It was contended that since March/ April 2003, he
has been utilising the premises for storage of cassettes, in
connection with his business concern, `Kalyani Audios’, Diwan’s
Road, Cochin. According to him there has not been any
cessation of occupation as contemplated in Section 11(4)(v) of
the Act and that the petition deserved to be dismissed.
4. Before the Rent Control Court evidence was let in by both
sides. On behalf of the respondent landlord, PW1, a Director of
the company was examined and Ext.A1 was marked and on
behalf of the petitioner/ tenant RW1, the tenant himself and
RW2, the Advocate Commissioner, who submitted Ext.C1 report
were examined. EXts.B1 to B7 series were also marked on
behalf of the Revision Petitioner/ tenant.
5. Considering the evidence the Rent Control Court by its
order dated 15th June 2004 held that there was cessation of
occupation, rendering the tenant liable for eviction under
Section 11(4)(v) of the Act and accordingly the tenant was
ordered to vacate the petition schedule premises within a period
of one month. The petitioner filed RCA No.103 of 2004 before
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the Rent Control Appellate Authority, which was also dismissed
by judgment dated 18.11.2006. It is aggrieved by the
concurrent orders of eviction passed by the lower authorities
that this revision petition is filed under Section 20 of the Act.
6. On behalf of the Revision Petitioner, Sri.K.P. Dandapani,
Senior Counsel instructed by Sri.Varghese Kuriakose and on
behalf of the respondent, Sri.R.D. Shenoy, Senior Counsel
argued the case. To put the arguments of both sides in a
nutshell, which the petitioner contended for the position that
there has not been any cessation of occupation, the landlord
contended for the position that the facts made out a case under
Section 11(4)(v) of the Act. Both sides referred to us the
pleadings, documents and the oral evidence in the case in
support of their respective contentions.
7. We have considered the submissions made by the learned
Counsel on either side.
8. Section 11(4)(v) of the Act provides that a landlord may
apply to the Rent Control Court for an order directing the tenant
to put the landlord in possession of the building, if the tenant
ceases to occupy the building continuously for 6 months without
reasonable cause. This Section has been interpreted as
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requiring the landlord who seeks eviction under this Section to
establish not only that the tenant was not in occupation of the
building without reasonable cause continuously for 6 months
but also that he was not occupying the building on the date of
petition. Once it is so proved by the landlord, then the burden
would shift to the tenant to prove that he had reasonable cause
for such non-occupation. However, in this case, tenant contents
that he has been in occupation of the building and therefore,
that is the dispute to be examined. It is essentially a question
of fact depending upon the appreciation of evidence let in by
both sides.
9. Bearing the above legal position in mind, it is necessary for
us to appreciate certain admitted facts. It was in 1985 that the
rental arrangement started for 5 years with the rent of Rs.1000/-
per month and there after, the rent was revised to Rs.1500/- per
month. On both reasons, the agreement between the parties
did not specify any particular line of business to be carried on in
the building. As stated by the tenant, initially he was engaged
in the business of readymade garments, then in ayurvedic
medicines and thereafter in pharmaceutical business under the
name and style of `Vinayaka Medicals’. It was while so that in
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1997, electricity supply was disconnected by the landlord which
made the tenant move the Accommodation Controller by filing
ACP No.3/2000 and ultimately power supply was restored in
August 2001.
10. Meantime, the landlord filed O.S.No.1737 of 2000 before
the Additional Munsiff’s Court, Ernakulam seeking a decree of
injunction against the petitioner and his wife, in which, by order
dated 22.12.2000 in IA No.8599 of 2000, the Court passed an
order of injunction restraining the respondents therein from
subleasing or making permanent improvement in the building.
Against the order of injunction, the petitioner and his wife filed
an appeal as CMA No.150/2001, which was dismissed by the
VIth Additional District Judge, Ernakulam by his judgment dated
6th June 2001, inter-alia observing as follows:
“There is no need to interfere with the order of the lower court. But
at the same time I, make it clear that the lower court’s order will not
be a bar for the Appellants in making use of the building by doing
interior decorations in order to give a face-lift for profitable use. For
correcting the leakage, plastering also can be done by the
Appellants. With this modifications, in the lower court order, the
appeal is dismissed. No costs.”
The counsel on either side also admits that by judgment dated
31.01.2004, the suit has been decreed as prayed for. It was
much after the judgment of the District Court, as admitted by
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the tenant as RW1, that in March/ April 2003, he started using
the building for storage of cassettes of Kalyani Audios, Diwan’s
Road, Cochin and that while so, petition was filed by the
respondent on 22.05.2003 seeking his eviction.
11. The above admitted facts disclose that since 1997,
following the disconnection of power supply there was cessation
of occupation of the building and the tenant has no case that he
carried on any business in the building during this period.
Power supply was restored in August 2001 and even thereafter,
the tenant did not occupy the building and he seeks to justify
his alleged inability relying on the order of injunction that was
obtained by the landlord on 22.12.2000 in I.A.No.8599 of 2000
in O.S.No.1737 of 2000. The fallacy of the argument is that the
order continued only till 06.06.2001, when judgment was passed
by the Additional District Court in CMA No.150 of 2001. In view
of the judgment in CMA No.150/2001, though there was no
impediment for the continued occupation of the building, even
according to the Revision Petitioner, he started occupying the
building again only from March/ April 2003, by storing cassettes
of Kalyani Audios, Diwan’s Road, Cochin.
12. We are not impressed by the argument that the order
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dated 22.12.2000, passed by the Additional Munsiff’s Court
prevented the tenant from making use of the building and that
contributed to his inability to utilize the premises. First of all,
against the order of injunction passed by the Munsiff Court, the
petitioner and his wife, had filed an appeal as CMA No.150/2001
which was dismissed by the Additional District Court, Ernakulam
by judgment dated 06.06.2001, which we have already
extracted hereinabove. On reading the judgment, it is evident
that the tenant had the freedom to do interior decoration to
make profitable use of the building and therefore, if he wanted,
he could have occupied the building.
13. That apart, the suit itself was decreed ex parte as prayed
for on 31.01.2004, which means that the contentions of the
landlord have been admitted by the respondents therein and
upheld by the Civil Court. It only means, that the landlord was
justified in moving the civil court and obtaining an order of
injunction. Even if such an order had the effect of preventing
the tenant from continuing his activities, in view of the final
judgment passed by the Civil Court, we have to conclude that
what the tenant was carrying on, was an unauthorized activity.
Therefore, the order passed by the civil court cannot be
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projected to justify the default of the tenant in occupying the
tenanted building.
14. The admitted facts disclose, that there has been cessation
of occupation as provided in Section 11(4)(v) of the Act. Thus,
the controversy narrows down to the disputed question, whether
the tenant had in fact commenced occupation of the building in
March/ April 2003. If our finding on this issue is in the
affirmative, the necessary conclusion is that as on 22.05.2003,
when the Rent Control Petition was filed, there has not been
cessation of occupation by the tenant and if that be so, the
petition under Section 11(4)(v) of the Act is liable to be
dismissed.
15. Both the Rent Control Court and the Appellate Authority
have, on evidence, concurrently found that there has been
cessation of occupation and it is on that basis that eviction has
been ordered. In order to examine the correctness of this
finding, we have to refer to the case set up by the tenant and
the evidence that was led by him in the proceedings.
16. RW2 is the Advocate Commissioner, who had visited the
petition schedule building and submitted Ext.C1 report. The
Commissioner deposed that the building appeared to be not in
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use for a long period. He found the building locked with a
collapsible shutter and a glass door on aluminium fabrication
behind it. Though, he could only see the inside of the room
through the shutter and the glass, all that he could notice was
some old paper boxes, empty plastic bottle, damaged tubes etc.
He also reported of having seen some wooden pieces, old sacks
and plastic cans scattered inside the room. He also found the
name board `Vinayaka Medicals’ to be dusty and damaged and
another one turned upside down. Though, the witness was
cross examined, the Rent Control Court found that nothing could
be brought out to discredit his version or the report submitted
by him. The only point that was raised was that before
inspecting the building the Commissioner did not serve notice
on the Revision Petitioner. The explanation of the
Commissioner was that he made an attempt to serve notice on
the petitioner at his address in the petition schedule premises.
This explanation was acceptable to the Rent Control Court and
taking note of the further fact that the Commissioner was
already examined in the case, the court found nothing vitiating
the report. This contention was reiterated before us also but
we do not find any force in the submission.
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17. Among the documentary evidence that was relied on by
the tenant, Ext.B6 series, are the invoices of `Kalyani Audios’.
These invoice copies were produced, in an attempt to prove sale
of cassettes to various customers and that the consignments
were delivered from the petition schedule premises, on the
strength of a rubber seal affixed on the invoices stating that
“delivered from Vinayaka Medicals, Hotel Dwaraka Building,
M.G. Road, Ernakulam. The Rent Control Court found the
invoices to be dubious and suspicious and the reasons thereof
are elaborated in the order. Although, the tenant while
deposing as RW1 asserted that he started to use the premises
from March/ April 2003, Ext.B6 series were of the period from
April 2002 to January 2004. That apart, the story regarding
`Kalyani Audios’ was also set up by the tenant only during the
course of the evidence and was conspicuously absent in the
statement of objection. Even the sales tax registration of
`Kalyani Audios’ was not produced by the tenant although he
had expressed his willingness to produce the same.
18. Ext.B6 series contained 13 invoices and for the period prior
to March/ April 2003, there were 8 invoices starting from
08.04.2002 to 16.02.2003 and this contradicts his own case that
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business commenced only during March/ April 2003. After
Ext.B6(g) dated 16.02.2003, the next one Ext.B6(h) is dated
20.05.2003, followed by Ext.B6(i) dated 06.08.2003. The
frequency of the bills, the absence of anything to prove
ownership of the alleged `Kalyani Audios’, the absence of sales
tax registration in the invoices, the tenants failure to produce
the same and lack of proper pleadings were taken note of by
the Rent Control Court to suspect the genuineness of Ext.B6
series. We may also add that these invoices do not include
even one which pertains to March/ April 2003 when the tenant
claims that he had started using the premises for storage of
cassettes. The Rent Control Court found story unbelievable for
the further reason that in a commercial nerve centre like M.G.
Road, Cochin, the tenant was carrying on the business without
even displaying a board.
19. The other piece of evidence that was relied on by the
tenant was Ext.B5 series Electricity Bills. The Rent Control Court
referred to this and found that Ext.B5 bill was dated 21.10.2002
in which the reading was noted 00085 and the consumption was
Nil. Ext.B5(a) bill dated 20.08.2003 also noted reading as 00085
and consumption was Nil. Similar is the case which Ext.B5(c),
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bill dated 17.04.2002 in which the previous reading was noted
00085, and the consumption was recorded as Nil. Ext.R5(b)
dated 21.06.2003 also mentioned reading as 00085 and the
consumption was shown as Nil. Despite the restoration of
power supply to the building in August 2001 and the claim of
the tenant that he has been carrying on business from the
premises, during cross examination his explanation for the non-
consumption of power was that the shop was functioning only
during day time and hence it was not necessary to consume
electricity. The Rent Control Court taking into account the fact
that the invoices covered a period of almost 6 months, found it
highly improbable and unbelievable that the tenant was
carrying any business in the premises, without consuming even
a single unit of energy during the aforesaid period. If the
explanation of the tenant is to be accepted one wonders why
the tenant waited till March/ April 2003 to start occupation of
the premises.
20. The Rent Control Court referred to the evidence that was
tendered by the tenant and found it to be inconsistent,
contradictory and riddled with discrepancies. Analyisng the
same in the light of the documentary evidence, the
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Commissioner’s report and the evidence as Ext.RW2, in the light
of the judgments of this Court, the Rent Control Court held that
there was cessation of occupation for a continuous period of
more than 6 months and ordered eviction of the tenant. Having
considered the findings of the Rent Control Court, as affirmed by
the Appellate Authority, we do not find any error committed,
warranting interference.
21. The Rent Control Court also dealt with the contention of
the tenant that the signatory to the petition was not competent
to represent the petitioner company. The objection apparently
was that the signatory was not proved to be the Director of the
Company and that in the petition the name of the
representative was not mentioned in the cause title. The court
held that it was not essential that the representative of a
company should appear on the array of parties to the
proceedings. Thereafter, referring to order XXIX Rule 1 of
C.P.C., court held that when the suit is by a company it may be
signed by a Director. The court also found that there was no
specific contention in the objection in the pleadings regarding
the incompetence of the signatory and making reference to
Exts.B1, B3 and B4, the court found that the tenant himself had
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accepted the signatory, who was examined as PW1, as a
Director of the company in those proceedings and that he had
no case that PW1 had ceased to be a Director thereafter. In the
circumstances, the Rent Control Court held the contention to be
false, vexatious and frivolous. PW1, admittedly being a
Director, has the competence to represent the company. Since
the petitioner had no case that PW1 had ceased to be a director
of the company, we do not find any merit in this contention as
well.
22. In RCA No.103 of 2004 filed by the tenant, also the
contentions urged before the Rent Control Court were
reiterated. The capacity of PW1 to represent the company has
been examined and finding that he was a Director of the
Company, the Appellate Court held that he had the competence
to represent the respondent company. The Appellate Court has
taken note of the previous proceedings to which the tenant is a
party, where the capacity of PW1 was accepted by the tenant.
Thereafter, the Appellate Authority proceeded to examine the
ground under Section 11(4)(v) of the Act and re-appreciated the
entire evidence and upheld the findings of the Rent Control
Court.
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23. As we have already noted, the fate of the petition turns on
the question whether, on the evidence available, it was proved
that the tenant had commenced the business of storing
cassettes in the building as claimed by him from March/ April
2003. On the evidence that is available, including the oral
evidence, it was concurrently held that it was not proved that
the tenant had used the premises for business purposes and
that there was cessation of occupation, rendering the tenant
liable for an order of eviction under Section 11(4)(v) of the Act.
Having anxiously considered the whole case, we see no error in
the findings of the Rent Control Court as affirmed by the
Appellate Authority and we fully endorse the findings entered by
the lower authorities.
We do not find any merit in this Revision Petition and
accordingly the Revision Petition will stand dismissed without
any order as to costs.
P.R.RAMAN, JUDGE.
ANTONY DOMINIC, JUDGE.
Rp